Policy —

Judge slams, slashes “unconstitutional” $675,000 P2P award

A $675,000 damage award for sharing music on the Internet violates the …

Judge Nancy Gertner knows that Joel Tenenbaum did it. Tenenbaum, the second US target of the RIAA's five-year litigation campaign to complete a trial, eventually admitted his music-sharing liability on the stand—and Judge Gertner issued a directed verdict against him. But when the jury returned a $675,000 damage award, they went too far. Way too far.

In fact, according to Gertner, they trampled the Constitution's "Due Process" clause. In a ruling today, the judge slashed the $675,000 award by a factor of 10, to $67,500.

Two for two

If it sounds like a familiar result, it should. In Minnesota, Judge Michael Davis used a different legal approach called remittitur to lower Jammie Thomas-Rasset's liability from $1.9 million to $2,250 per song. That amount is three times higher than the $750 minimum for statutory damages, and Judge Gertner has accepted both Judge Davis' number and his reasoning when issuing her own opinion.

"Weighing all of these considerations, I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive," she wrote. "This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. To borrow Chief Judge Michael J. Davis' characterization of a smaller statutory damages award in an analogous file-sharing case, the award here is simply 'unprecedented and oppressive.'"

And, just like Davis, Gertner made clear that she was deferring to Congress and to the jury by even allowing this amount to stand. "This amount is more than I might have awarded in my independent judgment," she said. "But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case."

When Judge Davis used remittitur—essentially an application of judicial discretion—to cut the Minnesota award, he set himself up for a third trial in the Thomas-Rasset case, one that will get underway in October. (Remittitur only works when the plaintiff accepts it; if not, the plaintiff has the right to a whole new trial.)

But Gertner doesn't want another trial, because she's concerned that she will face the same issue again in the future.

"The plaintiffs in this case [the music labels], however, made it abundantly clear that they were, to put it mildly, going for broke," she wrote. "They stated in open court that they likely would not accept a remitted award. And at a retrial on the issue of damages, I would again be presented with the very constitutional issues that the remittitur procedure was designed to avoid. I am thus obliged to deal with Tenenbaum’s constitutional challenge."

And in ruling on that challenge, Judge Gertner simply couldn't believe that Congress meant for "the Copyright Act’s broad statutory damages provision [to] be applied to college students like Tenenbaum who file-shared without any pecuniary gain."

Gertner points out that large companies have complained for years about "out of control" jury verdicts, and that courts had repeatedly sided with corporations against absurdly large damages on Constitutional grounds. Those protections apply to everyone.

"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."

"We will contest this ruling"

We checked in with the Recording Industry Association of America (RIAA), which was—as you might suspect—not pleased at having another federal judge reduce a P2P damage award.

"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress," it said in a statement. "The judge appropriately recognized the egregious conduct of the defendant, including lying to the court about his behavior, but then erroneously dismisses the profound economic and artistic harm caused when hundreds of songs are illegally distributed for free to millions of strangers on file-sharing networks. We disagree with court's reasoning and analysis, and we will contest this ruling."

Congress hasn't yet acted to bring some kind of sanity to the damage awards in these cases, so it looks as though federal judges are now making a concerted effort to establish precedent for reasonable damages. Both Davis and Gertner have settled on $2,250 a song—far lower than the $150,000 per-work maximum that was on the table in both cases.

In addition to irritating the RIAA, the ruling can't be good news for the US Copyright Group, which has filed 14,000 similar lawsuits in 2010 alone, targeting those who swap independent films online. The settlement letters in those cases make clear that, unless defendants cough up the cash, the US Copyright Group plans to seek the full $150,000 if the case goes to court. Judges appear to have other thoughts.

I already thought, how can these cases even be called "legal" in America? $67,500 is still way too much. A $675 fine seems appropriate here; it scares of the pirate quite a bit, but it doesn't bankrupt them. I don't think piracy is a tougher crime then speeding; it should also be punished similarely(I also think eating meat is ethically more wrong then piracy; but that's just me).

I did know though America's law system was messed up already; Piracy seems like a crime as big as bank robbery, and discrimination(mostly of gay people) is legal and sometimes it's even illegal not to discriminate(illegal gay marriage).

But yeah, that's coming from someone who thinks that communism would be a great system, only if it would've worked(which it won't, because people are too selfish in this self-centered world).

Specop_007 wrote:

If you're done with the soapbox to peddle your beliefs can we return to the article please?

I don't feel the need to make a new post for this; that'll be spamming, so here's my response:Yes, this has a lot of my beliefs in it, to make it a bit more then a 1 sentence reply, but also allowing for an easier discussion.

There is too much applied to these cases. They go way overboard. Personally, I think the plantiff should only be able to recover what they actually lost, or would have actually lost in this case, and that being basically the cost of a CD with the same music on it. If I sued someone i'd be limited to recover my loss, not what I said i think I lost or want, and thats what is happening here with the RIAA and the rest being able to imply losses they can't define and taking advantage of a jury understanding of a law that was never meant to be applied for the scope of these cases.

From a logic standpoint if your file sharers are mostly in debt college kids why would you sue for 6x what it costs to go to college? The kids is going to file for bankruptcy and probably won't be employed because of this, how then do you expect to get money from him? THINK RIAA THINK!

Id move to another country before id pay $67,500 for ticky tack bullshit like downloading off of a platform (the internet) which supplies a bazillion files that are already being swapped on a daily basis by millions of people.

Jury's are generally stupid. There should be an IQ test with a 125 minimum.

Quote:

"Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards," she wrote. "It also protects ordinary people like Joel Tenenbaum."

That $750 sum didn't seem too bad TBH, and treble damages for willful infringement with intent I could go with. It is much more sane then 150k per instance...

It's 750 times the cost of the item (and that's even RETAIL cost!). Should we sue doctors for 750 times (minimum) the cost of repairing something caused by negligence or malpractice? How about sue companies for values 750 times the cost of a faulty product? Each Sony CD sold with a rootkit has to be bought back for at least $15000 by Sony. Sound good?

That $750 sum didn't seem too bad TBH, and treble damages for willful infringement with intent I could go with. It is much more sane then 150k per instance...

It's 750 times the cost of the item (and that's even RETAIL cost!). Should we sue doctors for 750 times (minimum) the cost of repairing something caused by negligence or malpractice? How about sue companies for values 750 times the cost of a faulty product? Each Sony CD sold with a rootkit has to be bought back for at least $15000 by Sony. Sound good?

I think he was referring to my sum of $675, which was 22.5 times the price of the iTunes version when the numbers are bought. This may still seem like a lot, but the pirate is sharing it and allowing others to download it; also pirates will likely get caught for only one album or something like that, not hundreds of them. More albums shouldn't scale the same way; but only because it should be a punishment to scare, not to compensate. It should be "vertical", between the government and the civilian, not "horizontal", between civilians.

Edit: Actually, when reading this after posting this, $675 seems still a bit too much. $200 for the first time would do, about $400 for the second time, and about $600 for more times.

"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,"

So the RIAA has stated its official opinion: That any ten legally-untrained people dragged in off the street (which could easily consist of ten homeless crack addicts) have, through some magickal process known only to the RIAA, more legal expertise than a professional judge who has made a career of studying and applying the law.

Here's a rule for simple logic, RIAA: Ten bags of steer manure do not contain the equivalent nutritional value of one quart of strawberries. See if you can apply that logic to the law. Feel free to ask for hints if this is too complex for you to come to the correct conclusion without help.

But yeah, that's coming from someone who thinks that communism would be a great system, only if it would've worked(which it won't, because people are too selfish in this self-centered world).

Actually communism does work (which actually hasn't been tried yet and doesn't even exist since all the so called "communist countries" are all state capitalist), the "people are selfish" claim is just a capitalist falsehood (and it's also one of the main reasons why there is no strong left wing organizations as long people keep believing in the whole "human nature" falsehood).

There are two ways of looking at the money being asked for: punitive or compensation. The RIAA is looking for perceived compensation, while the court is looking for punitive - at least that's the way I understand it.

The problem with the RIAA is that they seem to be run be accounts and lawyers in "la la" land. What I mean by that is that if they ask for amounts that a) are absurd in terms of real damage and b) couldn't be ever paid by the defendant, then they are unlikely to ever to see a cent and it will actually be counter-productive, since the defendant could easily declare bankruptcy and also continue copying because the whole affair would seem laughable.

It makes far more sense to ask for punitive damages that make the defendant, and everyone else, think twice and can actually be paid in a suitable time period.

The notion that what's good for corporations should be good for the individual makes sense, IMHO, partly because it makes everyone think twice about which laws are passed and how they are implemented.

But yeah, that's coming from someone who thinks that communism would be a great system, only if it would've worked(which it won't, because people are too selfish in this self-centered world).

Actually communism does work (which actually hasn't been tried yet and doesn't even exist since all the so called "communist countries" are all state capitalist), the "people are selfish" claim is just a capitalist falsehood (and it's also one of the main reasons why there is no strong left wing organizations as long people keep believing in the whole "human nature" falsehood).

Humans are selfish in nature, or at least their genes are selfish. If they can profit off other people, they will (some exceptions, because we don't have natural selection in this world anymore). This is one of the underlying principles of evolution; we can only hope to get rid of it but we won't get rid of it soon.

You do have a point that it hasn't been truly tried yet; the so called "communist states" haven't gone further then a phase between capitalism and true communism.

Edit(to prevent double post):

wattly wrote:

Also, people, please stop buying music from RIAA affiliated labels.

It's hard to explain people like my sister that she shouldn't buy music from company A but pirate it(which is legal/grey in our country as long as you don't share), but that she should buy music from company B instead of pirating it.

The way *I* heard it, the "pecuniary gain" is listening to the music without paying the 99 cents (or so).

That justified, at least to the RIAA et al, any commercial-level copyright penalties more suited to people hawking CDs at flea markets.

The RIAA wants to emulate The Robot with a Crush, Kill, Destroy game plan, and this lowering of the damages is just going to make them mad. A REALLY fair judgment of like $25 per song and they'd pop a blood vessel...

Here is a list of RIAA members. I was very disheartened to see how many labels, even counter-cultural or alternative labels are on the list. This is from their website. It is amusing about their hollow talk about "free speech". http://www.riaa.com/aboutus.php?content ... us_members

I already thought, how can these cases even be called "legal" in America? $67,500 is still way too much. A $675 fine seems appropriate here; it scares of the pirate quite a bit, but it doesn't bankrupt them. I don't think piracy is a tougher crime then speeding; it should also be punished similarely(I also think eating meat is ethically more wrong then piracy; but that's just me).

I did know though America's law system was messed up already; Piracy seems like a crime as big as bank robbery, and discrimination(mostly of gay people) is legal and sometimes it's even illegal not to discriminate(illegal gay marriage).

But yeah, that's coming from someone who thinks that communism would be a great system, only if it would've worked(which it won't, because people are too selfish in this self-centered world).

If you're done with the soapbox to peddle your beliefs can we return to the article please?

I think you people are missing the point...I guess it is allright to steal as long as you don't get caught then.The reason for the large fines is to deter people from doing just that...Maybe if someone breaks it down for you you can get the point...

One song placed in a shared folder on say... Limewire, Frostwire, etc.. now that song is downloaded a couple of thousand times from that folder by all of you criminals that are too cheep to buy the music you so cannnot live without...At 99 cents per download that comes to about $2,000.00Now do you get it????

These recent Slash & Bash rulings are good, even if some of us don't think that the judges have gone far enough. The problem, in my lay opinion, is that the Bash parts are not in any way legally binding beyond these specific cases. Unless/until that magic $150,000 figure changes or a higher court rules, the slashes change virtually nothing. Precedent? Sure, but that's as yet be applied, and may never be applied. If enough such cases go to trial in enough jurisdictions, with the plaintiffs going for big bucks, we should not be surprised to read of other judges allowing the jury awards to stand. That's the sad part. The happy part is that I really like the bashing.

Ever here of Jury Nullification. Judges will deny it but there is not a thing they can do about it. If the you feel the law is unjust then you cannot find the defendant guilty. It is that simple. spread the word as it is a way every citizen can fight back against every one of these bogus laws.

"With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,"

So the RIAA has stated its official opinion: That any ten legally-untrained people dragged in off the street (which could easily consist of ten homeless crack addicts) have, through some magickal process known only to the RIAA, more legal expertise than a professional judge who has made a career of studying and applying the law.

Yes, also a judge who is a former student and admirer of the defendants lawyer, if we look at it like that the judgement of 10 jurors (which the defense also had a say in btw, equal to that of the prosecution in fact) seems a whole lot more impartial, does it not?

I think the real problem is that the copyright act is simply unconstitutional in that the minimum it provides will, in some circumstances, necessarilly be an excessive fine, as prohbited by the eigth amendment.

I'm not confident my sense of jurisprudence will get all that far though, considering that three strikes laws have been found constitutional, and since copyright in cases like this is simply a civil matter, it won't be put under as much strict constitutional scutiny.

I think the lesson to be learned here is if you get sued by the RIAA and decide to go to court it's probably in your best interest to push for a bench trial over a jury trial; both judges in these cases stated even the award amounts they settled on were higher than they would have awarded outright.

I already thought, how can these cases even be called "legal" in America? $67,500 is still way too much. A $675 fine seems appropriate here; it scares of the pirate quite a bit, but it doesn't bankrupt them. I don't think piracy is a tougher crime then speeding; it should also be punished similarely(I also think eating meat is ethically more wrong then piracy; but that's just me).

I did know though America's law system was messed up already; Piracy seems like a crime as big as bank robbery, and discrimination(mostly of gay people) is legal and sometimes it's even illegal not to discriminate(illegal gay marriage).

But yeah, that's coming from someone who thinks that communism would be a great system, only if it would've worked(which it won't, because people are too selfish in this self-centered world).

Specop_007 wrote:

If you're done with the soapbox to peddle your beliefs can we return to the article please?

I don't feel the need to make a new post for this; that'll be spamming, so here's my response:Yes, this has a lot of my beliefs in it, to make it a bit more then a 1 sentence reply, but also allowing for an easier discussion.

I do need to make a new post, because it irritates the shit out of me. Half your post added nothing of value. Tell me, how the hell does eating meat or not apply to damages awarded in a jury trial?? What the hell does Communism have to do with a judge? Why even bother to throw this in, it adds nothing of value.

If your going to try to broadcast your beliefs in every conversation expect someone to point out the silliness of you doing so.

BooDoggie wrote:I think you people are missing the point...I guess it is allright to steal as long as you don't get caught then.The reason for the large fines is to deter people from doing just that...Maybe if someone breaks it down for you you can get the point...

One song placed in a shared folder on say... Limewire, Frostwire, etc.. now that song is downloaded a couple of thousand times from that folder by all of you criminals that are too cheep to buy the music you so cannnot live without...At 99 cents per download that comes to about $2,000.00Now do you get it????

Steal? What is stolen? Nothing is stolen in these cases. To say you have stolen actual property is absurd.

Here is a list of RIAA members. I was very disheartened to see how many labels, even counter-cultural or alternative labels are on the list. This is from their website. It is amusing about their hollow talk about "free speech". http://www.riaa.com/aboutus.php?content ... us_members

Free speech is great, until it doesnt fall i line with your ideas. Sad, but that seems to be the tolerance most people have.

67,000 is still insanely too much. And despite anything the RIAA/MPAA or whomever else says, this is NOT the same thing as taking an item from a store shelf. Its a digital COPY, where no one has lost anything of value.

I find it sick what this country is becoming. Corruption at its finest, who have their pockets lined with money from big business.

One day the RIAA/MPAA and our own Government is going to have to answer to God for the lives they have intentionally ruined. If anything, the most that should be fined is the value of the product itself. I read that these lawyers hired by our own Government, are former RIAA lawyers... which explains their attitude towards the judge.

I think you people are missing the point...I guess it is allright to steal as long as you don't get caught then.The reason for the large fines is to deter people from doing just that...Maybe if someone breaks it down for you you can get the point...

One song placed in a shared folder on say... Limewire, Frostwire, etc.. now that song is downloaded a couple of thousand times from that folder by all of you criminals that are too cheep to buy the music you so cannnot live without...At 99 cents per download that comes to about $2,000.00Now do you get it????

Now do you see where your argument falls apart? You assume that EVERY song that is ever shared must have been downloaded thousands of times. Most people don't share at 100%, few might share to 1,000%, but you are claiming a share ratio of 200,000%... for EVERY SONG! To tell the truth, I can't tell if you are overlooking this obvious fact ro are just attempting to troll.

Personally, I don't approve of these fines EXCEPT when levied against the ORIGINAL uploader. Those are the ones that SHOULD be punished.

Edit: In addition, to your first statement I'd like to point out that so far most here are of one or two opinions. Some feel they should only pay a multiple of the amount the company lost if they had purchased the songs, and others feel that they should pay a punitive amount, but not a rediculous amount. Few if anyone said they should all go free. See, there is a difference between punative, and life ruining. Most normal people don't feel these people should have their life ruined because they shared a CD worth of music. This is almost equivalent to ripping music from a CD for your iPod, then lending the CD to a friend. Doing this shouldn't result in you and your children being forced into poverty for the rest of your natural life.

I guess you are the type of person that feels that shop lifters deserve to lose their hand and adultery deserves the death penalty?

I think you people are missing the point...I guess it is allright to steal as long as you don't get caught then.The reason for the large fines is to deter people from doing just that...Maybe if someone breaks it down for you you can get the point...

One song placed in a shared folder on say... Limewire, Frostwire, etc.. now that song is downloaded a couple of thousand times from that folder by all of you criminals that are too cheep to buy the music you so cannnot live without...At 99 cents per download that comes to about $2,000.00Now do you get it????

So I wonder how you feel about 1 popular cd being in a public library...and now that cd is borrowed a couple thousand times from that library by all of us law abiding citizens who are interested in a wide variety of music. Now not every borrower from said library is going to rip that to their hard drive, but quite a few hundred are. So what is your stance now? And really, what is the "real" difference from physically going to the library and accessing the world wide web (which in itself is a library of sorts).